Gary M. Galles - Contributor
Galles is a professor of econmics at Pepperdine University.
a Judge for Respecting the Constitution?
The Ugly Campaign Against Justice Janice Rogers Brown
[Gary M. Galles] 11/7/03
battle in the Washington war over court appointments has
erupted. California Supreme Court Justice Janice Rogers Brown,
President Bush's nominee to the U.S. Court of Appeals for the
District of Columbia, had her hearing before the Senate Judiciary
Committee. Many insiders think her nomination will be moved
the full Senate on a 10-9 party-line vote, where an intense
campaign by liberal groups may land her on the list of jurists
have decided to filibuster.
killing her nomination so important? It is something she shares
with the other nominees
who have been filibustered.
According to the Congressional Black Caucus, it is the charge
that she is a conservative with a "disdain for legal
Richard Durbin (D-Ill)seconded that, saying "You frequently
dismiss judicial precedence...when it doesn't comport with
your political views," and other interest groups echo
the same charge.
the criticism being directed at Justice Brown is, in fact,
nothing more than an intentionally
fact that she proposes to be faithful to the Constitution.
That is what makes some desperate to stop her nomination.
taken seriously our founding documents. In particular, she
has taken the idea that the Constitution is the highest
law of the land seriously. This is clearly what our founders
in mind, as made clear in Federalist 78: "where
the will of the legislature, declared in its statues,
to those of the people, declared in the Constitution,
the judges ought to be governed by the latter than the
this makes her diametrically opposed to those who think
of the Constitution as a "living document," because
if the meaning of the Constitution can be easily changed
interpretations, then the Constitution cannot be the
highest law of the land in practice.
That is why
understanding Brown's attitude toward precedent
is so important. She has clearly stated she would follow
binding precedent as an Appellate Judge, and those
she works with endorse
that claim. But the D.C. Appeals court has jurisdiction
over many regulatory matters, and is widely considered
to the Supreme Court. Especially if she were to take
that next step, her intent to be faithful to the Constitution,
controlling precedent could result in overturning some
rulings that have moved us far from it.
threatens liberal precedents that have created new rights
out of thin air (or out of "emanations from penumbras" around
stated rights) or have done serious violence to the
meaning of the Constitution through reinterpreting what its
words mean (words
like "taking" and "commerce," and
even "no" and "not").
But those are the precedents liberals are most desperate
to be the biggest issue to Brown's opponents is to preserve
the pattern of Supreme
century or so: liberal courts create new rights
and expand government powers, then conservative courts,
out of deference
to those "new
and improved" precedents, leave them in place,
and even build upon them further, rather than rolling
them back. Of course,
if courts are to defer to earlier precedents, how
can the activist rulings (such as from the New
Deal and Warren courts) which some
are now so adamant to protect be defended, since
they clearly deviated from precedent?
Justice Brown's views about precedent are moot. She would
be an appellate court judge,
rulings would be binding, whether or not she
thought they were correctly decided. But those most threatened
would take the Constitution seriously, if elevated
to the Supreme Court,
are so concerned they must keep her off the Appellate
Court, just in case.
has never advocated overturn of precedents that protect citizens
was the primary
purpose of the Constitution. She has only taken
exception to rulings which are blatantly inconsistent
it, to reinstate those protections and rights
was written. If that is considered a valid
criticism of a potential judge, one important enough to
to stop her nomination, then we might as well
admit it: Much of the Constitution is already
hope of resurrection.
2003 Gary M. Galles